Citation Nr: 20044014 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 16-24 787 DATE: June 30, 2020 ORDER Entitlement to service connection for peripheral neuropathy of the right upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity is granted. Entitlement to service connection for an autoimmune disorder is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. The evidence favors a finding that, during the pendency of the claim, the Veteran had a documented disability of peripheral neuropathy of the bilateral upper extremities and that this was caused by chemotherapy treatment for service-connected non-Hodgkin’s lymphoma. 2. The preponderance of the evidence is against a finding that the Veteran had a diagnosed autoimmune disability at any point during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.310 (2019). 2. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.310 (2019). 3. The criteria for entitlement to service connection for an autoimmune disorder have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. 3.102, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1967 to April 1970. The Veteran passed away in March 2019 and the Appellant—his surviving spouse—has been approved as a valid substitute on these claims. This case is on appeal of a February 2014 rating decision. This case was previously before the Board in January 2020. At that time, the Board remanded the matters below, as well as the claim of entitlement to service connection for residuals of carcinoma of the face, for further development. Specifically, the Board noted that the Veteran had made statements referencing the presence of VA treatment records that were not associated with the claims file. Additionally, the medical opinions allegedly contained in those records indicated a duty by VA to obtain additional medical opinions. Subsequent to the Board’s remand, the agency of original jurisdiction (AOJ) issued a June 2020 rating decision granting entitlement to service connection for facial scars secondary to carcinoma of the face, effective the date of the Veteran’s claim. That issue is considered granted in full and is no longer before the Board. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for peripheral neuropathy of the right and left upper extremities The primary question regarding the Veteran’s claim for service connection for peripheral neuropathy of the bilateral upper extremities was whether the Veteran had a diagnosed disability during the claim period. In August 2005, the AOJ granted service connection for peripheral neuropathy of the bilateral lower extremities as secondary to treatment for the Veteran’s service-connected non-Hodgkin’s lymphoma. In the August 2005 rating decision, the AOJ noted a statement from the Veteran’s VA physician stating that the Veteran experienced neuropathy of the hands and feet that was caused by chemotherapy to treat lymphoma, however the symptoms had since resolved in the hands. Thus, the nexus between the chemotherapy treatments for the Veteran’s service-connected non-Hodgkin’s lymphoma and neuropathy symptoms had already been established. However, due to the fact that the symptoms in the Veteran’s hands had resolved, it was unclear whether a current disability existed at the time of the Veteran’s claim. In October 2013, the Veteran underwent a VA peripheral nerves examination. At that time, the examiner reported symptoms of peripheral neuropathy of the bilateral lower extremities but not the upper extremities. However, in August 2014, an electromyography (EMG) consultation showed reports of delayed latency of the bilateral median nerves and the right ulnar nerve from peripheral neuropathy. In June 2016, the Veteran sent an electronic communication to his VA treatment provider complaining of nerve issues in his hands. In response, his provider wrote, “With regards to your neuropathy…you have already had an EMG which shows advanced peripheral neuropathy. This disease is not just in the legs, it is in the periphery; most people have the numbness/tingling/pain in a stockings and glove distribution, which you are experiencing.” In April 2017 treatment records, the Veteran complained of bilateral hand numbness and tingling, and in January 2019 the Veteran care manager noted the Veteran’s reports of tingling in his bilateral upper extremities. Thus, despite the lack of upper extremity neuropathy symptoms at the Veteran’s October 2013 examination, there is significant evidence to support a finding that the Veteran experienced symptoms of peripheral neuropathy of the bilateral upper extremity at multiple points throughout the claim period. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran had a bilateral upper extremity peripheral neuropathy disability during the appeal. In addition to the VA physician’s positive nexus statement noted in the August 2005 rating decision, the Board notes that a different treating physician also attributed the Veteran’s neuropathy to chemotherapy in a March 2014 statement. Given that the record contains multiple medical opinions indicating a positive nexus between the Veteran’s chemotherapy treatment and peripheral neuropathy, as well as the fact that VA has already conceded a relationship between chemotherapy and peripheral neuropathy, the evidence is in favor of a finding that peripheral neuropathy of the bilateral upper extremities was caused by treatment for the service-connected non-Hodgkin’s lymphoma disability. Accordingly, service connection for peripheral neuropathy of the bilateral upper extremities is granted. 2. Entitlement to service connection for an autoimmune disorder As a matter of background, the Veteran filed the present claim in June 2013. On his claim form, the Veteran categorized his claimed disabilities according to their sources. At the time of the claim, the Veteran was already service-connected for non-Hodgkin’s lymphoma. Per his categorizations on the claim form, he claimed entitlement to service connection for “auto-immune system deterioration-liver failure” and “left side of face indentation-surgery” as secondary to complications of non-Hodgkin’s lymphoma. The medical evidence demonstrates that the Veteran had a diagnosed non-Hodgkin’s lymphoma disability. As a result of the non-Hodgkin’s lymphoma, the Veteran experienced liver failure which required a liver transplant. Thus, in December 2004, the AOJ granted entitlement to service connection for non-Hodgkin’s lymphoma, with liver failure, status post liver transplant, at a rating of 100 percent. This rating accounted for both the initial non-Hodgkin’s lymphoma diagnosis, as well as the subsequent liver failure and replacement that the lymphoma caused. However, as the Veteran communicated, the immunosuppressive therapy that was required to maintain the liver transplant caused additional complications. It appears that there was some disconnect with the AOJ regarding the particulars of the Veteran’s June 2013 claim. In reviewing the Veteran’s notice of disagreement and VA Form 9, the Board interpreted the Veteran’s statements to indicate that he was attempting to file a claim for service connection for an autoimmune condition caused by the liver transplant as well as for an indentation of the left side of the face that resulted from multiple surgeries for skin cancer. In other words, the Veteran was claiming that the liver transplant led to immunosuppressive therapy and possibly an autoimmune condition. In turn, the immunosuppressive therapy led to the development of skin cancer, and the skin cancer led to surgeries causing damage to the left side of the Veteran’s face. In the June 2020 rating decision, the AOJ acknowledged the causal link between the Veteran’s service-connected liver failure and the damage to the left side of the Veteran’s face secondary to skin cancer surgeries. Based on the wording of the Veteran’s claim, however, the Board must address entitlement to service connection for a separately diagnosed autoimmune disorder. Here, the Board finds that the preponderance of the evidence is against a finding of a separate autoimmune disorder; therefore, service connection for such is not warranted. In a March 2014 statement in the Veteran’s VA medical treatment records, the Veteran’s physician reported “The immunosuppressive therapy caused the autoimmune disorder.” This is the only reference to an autoimmune disorder in the Veteran’s medical records. On the same date, the same physician also referred to the condition as “autoimmune system deterioration.” Although additional records support the finding that the Veteran’s immune system was weakened secondary to the immunosuppressive treatment for the liver transplant, there is no further indication that this resulted in a separately diagnosed autoimmune disorder. Indeed, in the Veteran’s October 2013 VA peripheral nerves examination, the Veteran himself stated that he was not aware of having any autoimmune condition. Moreover, in April 2020, VA obtained a medical opinion on this question. The examining physician reported that “based on a review of the Veteran’s file, there is no objective evidence supporting the premise that he was diagnosed with an autoimmune condition.” Thus, to the extent that the Veteran’s service-connected conditions resulted in autoimmune deterioration and this deterioration, in turn, led to other disabilities, those disabilities have been addressed on their own accord. However, based on the foregoing, the preponderance of the evidence is against a finding that the Veteran had a separately diagnosed autoimmune condition that was represented a disability on its own. As the preponderance of the evidence is against this finding, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38. U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on Next Page) REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. At the time of the Board’s January 2020 remand, there was evidence of a diagnosed sleep apnea disability during the pendency of the claim. At issue was whether sleep apnea was caused by or incurred in service. The Board noted that there appeared to be outstanding VA medical treatment records that might provide insight into a nexus or, at the very least, trigger VA’s duty to assist the claim. The Board finds that the outstanding records do, indeed, contain sufficient evidence to trigger the duty to assist by obtaining a medical opinion. Notably, records demonstrate that the Veteran had a long-standing history of sleep apnea at least as early as January 2005. Private treatment records from that time indicate that as the Veteran lost weight, the sleep apnea had resolved. In a March 2014, the Veteran’s treating VA physician provided a statement attributing several of the Veteran’s conditions to military service. The physician wrote, starting from the Veteran’s service-connected non-Hodgkin’s lymphoma, “The lymphoma required a liver transplant and chemotherapy. The chemotherapy caused the neuropathy. The liver transplant caused his liver failure and necessitated immunosuppressive therapy. The immunosuppressive therapy caused the autoimmune disorder. The immunosuppressive therapy caused his squamous cell cancer. The squamous cell skin cancer required a radical surgery. This surgery caused the face indentation. All the above conditions caused [the Veteran] to feel depressed and he gained weight causing his obstructive sleep apnea.” The Board notes that, although obesity itself is not considered a disability for VA purposes, when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an “intermediate step” for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (January 6, 2017). Furthermore, in Walsh v. Wilkie, 32 Vet. App. 300, the United States Court of Appeals for Veterans Claims (Court) held that when addressing the question of obesity as an intermediate factor, VA must evaluate whether a service-connected disability caused or aggravated the Veteran’s obesity, just as it would when analyzing secondary service connection under 38 C.F.R. § 3.310. The March 2014 opinion quoted above does not align with the framework for addressing obesity as an intermediate factor, as articulated in VAOPGCPREC 1-2017 (January 6, 2017). The opinion does not explicitly indicate that depression caused or aggravated the Veteran’s obesity, nor did it provide an medical explanation in support of the overall conclusion. Accordingly, on remand, a medical opinion is necessary to address this open question. The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the Veteran’s sleep apnea disability. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. Then, with respect to the Veteran’s diagnosed sleep apnea disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should also render an opinion as to whether it is at least as likely as not that the disability was caused or aggravated by a service-connected disability or disabilities. Specifically, the examiner should address whether it is at least as likely as not that obesity served as an “intermediate step” between the Veteran’s service-connected disabilities and sleep apnea by answering the following: a) Is it at least as likely as not that obesity served as an “intermediate step” between the Veteran’s service-connected disabilities and sleep apnea, by answering the following: (i) Is it at least as likely as not that the Veteran’s service-connected disabilities, to specifically include depression caused by these disabilities, caused the Veteran to become obese or aggravated the Veteran’s obesity? (ii) If so, was the obesity that resulted from or was aggravated by the service-connected disabilities a substantial factor in causing sleep apnea? (iii) Would sleep apnea not have occurred, but for the obesity caused by or aggravated by the service-connected disabilities? 2. Then, readjudicate the issue on appeal. If the benefit sought remains denied, send the appellant and her representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.